Some space advocates argue that private property rights on the Moon and other bodies are essential to the future of space development. Is there a way to accept property claims under the current treaty regime? (credit: NASA)

Staking a claim on the Moon

by Jeff FoustMonday, April 9, 2012

A long-running cause célèbre of some elements of the space advocacy movement has been the issue of private property rights, or the lack thereof, beyond Earth. Despite the existence of many private ventures that are happy to sell you plots of land on the Moon or other worlds, there are no recognized claims of property on those celestial bodies. The Moon Treaty of 1979, for example, explicitly prohibits any entity, government or commercial, from claiming any territory on the Moon.

“There’s maybe a loophole here” for space property rights, Simberg said. “The idea is that recognition is not necessarily appropriation.”

While that treaty has been ratified or acceded to by only a handful of countries, the older Outer Space Treaty (OST), widely accepted by all major spacefaring countries, prohibits countries from making any claims of national sovereignty over the Moon or other celestial bodies. Without any nation claiming territory on the Moon, the conventional wisdom goes, there is no national government that can register or recognize claims made by individuals or companies to property there. Changing that situation would require amending the OST, a process that would likely be drawn-out, messy, and unpredictable.

Or does it? A white paper released last week argues that private property claims to territory in outer space could be consistent with the OST, provided the US passed legislation to recognize those claims. Such legislation could enable private entities inside and outside the US to claim property of the Moon, thus enabling greater private development in space. Others, though, while acknowledging the need for private property rights on the Moon, say the loophole that this proposal exploits doesn’t actually exist.

A loophole in the OST?

The current round in the debate over property rights in space started with the publication last week of a white paper titled “Homesteading the Final Frontier” by the Competitive Enterprise Institute (CEI), a non-profit think tank that promotes issues associated with free enterprise. In the white paper, CEI adjunct scholar Rand Simberg explained his approach to securing property rights beyond Earth.

Simberg agrees that the OST prohibits countries from claiming sovereignty over territory on the Moon or other bodies. However, “there’s maybe a loophole here,” he said a forum about his white paper held Thursday on Capitol Hill. “The idea is that recognition is not necessarily appropriation.”

Specifically, he suggests legislation whereby the US would recognize claims made by private entities, American and others, which meet certain conditions regarding habitation and transportation. While it would recognize those claims, he said, the US government would not attempt to defend those claims by force. “If that’s the case—it’s not an American entity, and it’s not going to be defended by the US government—how could that possibly be a claim of sovereignty?” Simberg asked.

In the white paper, Simberg offers a hypothetical example where, under such a system, the US would recognize a claim made by a company incorporated on the Isle of Man with investors from Dubai. “To say that such a recognition amounts to a ‘national appropriation’ by the U.S. of the legal real estate established with such a claim is plainly absurd,” he writes.

The legislation to do this would be based on a proposal called the Space Settlement Prize Act, which would award claims to private organizations that establish inhabited bases on the Moon and other bodies. Those settlements would have to be permanently occupied with regular transportation that is open to anyone able to pay the fare. The first entity to meet those requirements would be entitled to a claim of 1.5 million square kilometers (600,000 square miles) on the Moon or 9.3 million square kilometers (3.6 million square miles) on Mars; each subsequent claim would be 15 percent smaller.

“Will the business case close? Who knows,” Simberg said. “But the legislation wouldn’t cost anything to the US government.”

Simberg said the large size of those claims was designed in part to allow for enough territory for an eventual sovereign state on a body, but also for economic purposes. “It allows an entity to go to investors and raise the money to go out and stake the claim,” he said.

The economic argument is also one of the core reasons for pursing such a property rights scheme. “Property rights are key to economic development,” Simberg said. They provide “equity and financial certainty that underlie the free market economy.” Moreover, he argued, “property rights are the foundation of human liberty.”

Without such rights on the Moon and other bodies, though, economic development of space has been stunted, he said. In the paper and his talk, he drew a comparison between the Arctic and Antarctic regions of the Earth. In the former there is a “resource boom” underway in territory claimed by Russia, Canada, and other nations. In the latter there is virtually no commercial activity: the Antarctic Treaty, which ban claims of national sovereignty and makes the continent primarily a scientific preserve.

Simberg acknowledged that there’s no guarantee economic activity will flourish under his proposed property rights scheme, although he’s clearly optimistic about the prospects of some ventures enabled by emerging lower-cost options for space transportation being developed by SpaceX and others. “Will the business case close? Who knows,” he said Thursday. “But the legislation wouldn’t cost anything to the US government.”

Rebuttals and counterarguments

Does the OST really offer a way for governments to recognize private property rights on the Moon and elsewhere? James Dunstan, a lawyer who specializes on space law issues and also serves as a senior adjunct fellow for the non-profit think tank TechFreedom, argued at the CEI event and in an accompanying white paper that the proposed loophole doesn’t actually exist.

The problem, Dunstan said, is with another part of the treaty, Article VI. That provision requires countries to take responsibility for national activities in space, be they by governmental or non-governmental entities, and “for assuring that national activities are carried out in conformity with the provisions set forth” in the OST.

That provision, Dunstan concluded, would keep the US government from recognizing any claims made by private entities: “launching states” must ensure that their nationals’ activities conform to the provisions of the treaty, which includes a prohibition on national appropriation of territory “by means of use or occupation” or other means. “There is no way that the United States could directly recognize land claims in outer space that were based on occupation, use, or other means,” he said. “The loophole that Rand referred to just doesn’t exist.”

Dunstan is clearly sympathetic to the desire of some to allow for a property rights system in space, but advocates a more incremental approach that has already offered some success. He cited progress made in telecommunications, where orbital slots area treated as a form of property. In addition, samples returned from a celestial body like the Moon are considered property that can be owned by a government or other entity. Dunstan noted that the US even exchanged some of the lunar samples returned by the Apollo missions with those returned by the Soviet Luna robotic missions. “Nothing characterizes a property right more than the ability to exchange it,” he said.

“There is no way that the United States could directly recognize land claims in outer space that were based on occupation, use, or other means,” Dunstan said.

Dunstan believes the next step in property rights in space is not recognizing claims on the Moon or other bodies, but instead dealing with orbits around the Earth that are increasingly crowded with satellites and debris. Under current treaties, launching states retain control over objects (and the liability associated with them) even after those satellites are abandoned; there is no equivalent to the maritime laws of salvage. He proposed legislation where the US would declare any American satellite (excluding national security spacecraft) abandoned once its useful life is over, and thus free to be salvaged by any US company—a scheme, he said, that could be extended to other countries through bilateral arrangements. “This first step could go a long, long way to taking concepts of maritime law and extending them to outer space,” he said. Only then, he added, would it make sense to start tackling issues like mining claims and land grants.

In a follow-up commentary to be published today at OpenMarket.org, Simberg argues that Dunstan’s argument doesn’t eliminate the loophole. “The implicit assumption throughout the criticism is that a State would recognize the claims of its own nationals, but not that of others,” he wrote. That is not his intent: under the proposed legislation, the US can accept claims made by private entities regardless of where they are located; hence, no national appropriation.

Simberg acknowledged there’s another interpretation of the treaty his paper didn’t address: under such an approach as he advocated, the US could recognize claims made by citizens of any country but the US, thus avoiding any perception of a sovereign claim. “But this result would be so perverse that only a space lawyer could believe it,” he writes.

“The idea is to get people talking about this, to get people thinking about space in a fundamentally different way than we have for the last half-century,” said Simberg.

Alan Wasser, chairman of the Space Settlement Institute, which proposed the legislation cited in Simberg’s white paper, also defended this approach. In an email, he cited a paper he co-authored that was published in the Journal of Air Law and Commerce in 2008 that addressed, among other issues, Article VI of the OST. “But the treaty clearly does not contain any language explicitly saying that states may not authorize their citizens to do anything that they themselves cannot do,” the paper states. Thus, Wasser said, while states may be prohibited from claiming territory on the Moon, citizens of those states are not, by extension, similarly prohibited.

Starting a dialogue

While the CEI white paper specifically mentions proposed legislation to recognize private land claims beyond Earth, Simberg is realistic about the prospects. “As low as the chances are of this legislation passing in any form, the chances of it passing in the form as it’s currently written is probably close to zero,” he said.

Simberg said he personally doesn’t plan on pursuing this idea further, but hopes that others will pick up the baton. He cited in particular Tea Party in Space (TPIS), a space advocacy group affiliated with the broader Tea Party movement, which had expressed an interest in the concept but was concerned about potential costs to the government. Simberg said that since the law imposes no requirements on the US government, there are no costs. Given that finding, “I’m hoping that TPIS will want to pursue it,” he said. (TPIS did not respond to a request for comment on this before this article was published.)

For now, the idea is less of a legislative priority than part of a longer-term effort to change perceptions about the purpose of going into space. “We are just trying to get a conversation going,” Simberg said. “The idea is to get people talking about this, to get people thinking about space in a fundamentally different way than we have for the last half-century.”

Jeff Foust (jeff@thespacereview.com) is the editor and publisher of The Space Review. He also operates the Spacetoday.net web site and the Space Politics and NewSpace Journal weblogs. Views and opinions expressed in this article are those of the author alone, and do not represent the official positions of any organization or company, including the Futron Corporation, the author’s employer.